Rich Cornelius

Let's talk about a topic near and dear to my heart - short sales. Yes, this "dance with the devil" as I like to call them is full of twists and turns, highs and lows, yes's and no's...some may liken it to marriage ;-)

I digress. Short sales have become a common occurrence, with some areas seeing just a few and other places seeing 30%, 50%, and even 75% of homes in a short sale status. To recap for those not paying attention, short sales are when the home's fair market value is EXCEEDED by the mortgaged amount, leading to a deficiency or "short" on the mortgage. To head off these homes going back to banks as foreclosures, banks will accept less than what is owed while sometimes sticking the owner with the difference...and sometimes not.

That is what we will discuss today:

the relationship between a 1099C and a deficiency judgment!

A deficiency judgment (DJ) CAN be pursued on the amount of the mortgage "forgiven" by the lender. EXAMPLE: Joe has a $150k mortgage and short sells it, with bank approval, to Jan for $100k. That leaves a $50,000 DEFICIENT AMOUNT.

In foreclosure or a short sale, lenders are allowed to, but rarely do, pursue deficiency judgments against the former owners. The reasons lenders normally DON'T file for deficiency judgments are:

1) Practically impossible to collect as most owners foreclosed on don't have much money
2) Cost of litigation to achieve the deficiency judgment is costly
3) DJ's can be discharged in bankruptcy as unsecured debts.

Banks will routinely issue 1099c's instead. When issuing a 1099C (cancellation of debt), banks take the paper loss and pass it on to the former owner as "income" in the eyes of the IRS. Pls consult an accountant for what to do with a 1099c.

If you are issued a 1099C, one would think that the deficient amount is history and a DJ is out of the question, as the debt is being transferred as "income" to the homeowner. A reasonable assumption. However, according to Carolyn Secor, a Clearwater-based attorney who specializes in foreclosure defense and bankruptcy, the 2 are apples and oranges. A DJ is a civil litigation action and a 1099C is simply an IRS function. The 2, when held at arms length, are not truly related. HENCE, ONE CANNOT ASSUME THAT THE ISSUANCE OF A 1099C WILL PREVENT A DJ.

Short sale sellers will find the language in their approval letter. Banks will state they are releasing the lien so the sale will go through but ALSO accepting the proceeds as payment in full. Some banks go as far as telling you how it will be recorded with the credit bureaus. Unless you see the above language, or "satisfaction of mortgage", or something similar, do NOT assume you are being released from the note (mortgage).

Unfortunately, sellers are taking a chance when they are told they will receive a 1099C at the end of the year AND they don't see any written language releasing them from the obligations of the note. And sometimes that's all the sellers get. Only that seller can determine whether its worth completing the short sale and dealing with future ramifications.

Are you FHA-Approved????

That's an important question all condo, townhome, and villa owners should be asking.

Why? Great question.

The government has a program run through the Federal Housing Administration that will allow qualified borrowers access to mortgages of UP TO 96.5% of the home's value (notice I did not say contract price, as an FHA appraisal will supercede a contract price). The borrower has to come up with the other 3.5% down payment, as well as closing costs. Closing costs can be paid by the seller on behalf of the buyers.

This is a terrific program that gets buyers with meager savings and blemished (but not sub-prime) credit into homes. Think first-time homebuyers, newlyweds, single parents, lower-income, etc. Truly a great program that encourages home ownership among a class that doesn't qualify for conventional loans.

Ok, so that's FHA in a nutshell. How does that help you, the condo/TH/villa owner? Well, since the 100% loans have gone the way of the dodo bird (non-existent) it is one of the most popular loan programs in the market today, aside from VA loans. This means more and more buyers are qualifying under this program. THE FLY IN THE OINTMENT IS THAT THE COMPLEX HAS TO BE APPROVED BY THE FHA FOR FHA LOANS.

It's an involved process with forms, documentation, and some elbow grease. Some complexs, due to their restrictions, will never qualify. However, it's well worth it for enterprising residents to ensure they have explored getting approved for FHA loans.

How can you tell if you're already approved? Luckily, FHA has a continuously updated website to check. It's: https://entp.hud.gov/idapp/html/condlook.cfm

Most likely your complex will not be approved, but it's normally for lack of trying. Once approved, it's something you want to SCREAM from the rooftops and let all buyers know. Ask you Association if they have ever tried to get approval. If they have not, volunteer to be a liaison and get them approved. Visit HUD.gov for more info.

FHA is a gift to buyers AND SELLERS so do your best to take advantage of it today.

We are the generation of DIY'ers...national brands have been built on empowering consumers and telling them they can do it themselves. Millions of dollars are spent assuring people they have the know-how and background to tackle any project, from fixing an electric socket (ZAPPPP!) to changing out an engine - yes, one of my college buddies actually attempted that (unsuccessfully by the way).

So when it comes to selling your own home, you can do that, too. Right? Well, the answer is not so clear cut. Most people know the majority of homes are sold via realtors and brokerages. However, a small share of homes are sold By Owner and those owners don't have any real estate sales background. The advent of the internet age has made this a distinct possibility, an easier mountain to climb so to speak. But there are pitfalls in this approach that will take you longer to sell and possibly decrease your net profit. Here are a couple of danger areas to avoid:

The Overly Proud Owner: I had this experience 2 weeks ago. Sellers bragged to my buyers that they were "Professional Homeowners". By the time we were done, my buyers were so detailed-to-death and tired of saying "oh, wow, that is a terrific shade of blue" that we high-tailed it out. But Mr. Professional Homeowner was on our heels and followed us to our cars, still bragging about his home. I finally had to start my car and drive away to get him to stop.

Is a proud owner extolling the virtues and upgrades of their home a bad thing? Not necessarily. But the fact that he was over-priced by about 10% scared the buyers away - the odds are so slim that someone so impressed with their own home would consider a below-list price offer.

The Uninformed Homeseller: I come across this alot with people representing themselves. Lawyers commonly say the quickest way to lose a legal case is to represent yourself. Harsh, but probably true. Well, one quick way to a lawsuit (if things go south) is by representing yourself in a home sale if you're not up-to-date on the latest and greatest "gotchas".

Example 1: You own a home built in 1977. Using a pre-printed contract from the internet, you lock up a buyer and close in 30 days. After closing, a lawyer for the buyer calls asking for the full contract and addenda. Unfortunately, you had n ot realized that FEDERAL LAW requires a pre-1978 home to have a Lead-based Paint Disclosure signed by all parties.

Example 2: You are selling your mothers home and want to move it quick. In 2002, it had a settlement issue that was repaired and the home was remodeled in and out. Since know other problems have cropped up, you put a sign in the yard and 5 months later you slide the keys to the new buyers. A month later, you get a call from a lawyer representing the buyer. They are looking for the Sellers Disclosures which state the home had a repaired settlement issue. The new buyers were putting in a pool and the workers discovered the pier-and-grout system that stabilizes the home. You thought you mentioned it to them in passing and that they were ok with it, but with no WRITTEN disclosures, you're in hot water.

The Oops, I Can't Advertise That? Homeseller: This is a big one. You are selling your home and putting an ad in the paper. Knowing your home is perfect for single people, you mention in the ad that the home has a terrific location for single owners or owners without children while also being perfect for Christians, as there are 3 churches in walking distance. Ooops. You just violated the Civil Rights Act of 1968, aka the Fair Housing Act, which protects people with children from being discriminated against while also disallowing religious discrimination.

Ok, so I dramatize a bit for illustrative purposes. But the point is that real estate transactions can be unintentional minefields, for lack of a better term. As GI Joe once put it, "knowing is half the battle".

One result of our over-supply of homes for sale is that many homesellers have turned into landlords, for good or for bad. Tightened mortgage regulations and economic hardships have increased the pool of available renters so there's a good chance a seller looking to rent their property will successfully rent it out.

Many sellers continue to market and sell their property with the permission of the tenant. Normally, tenants receive discounted rent or a lower deposit in exchange for keeping the property in showing condition and being flexible with showing appointments.

What happens when the property actually goes under contract while tenants are on property??? In Florida, the existing lease must be honored in accordance with the terms specified within the lease. So if the tenancy continues 6 months after the closing date, the new owners shall assume landlording duties and responsibilities as outlined in Ch 83 of the Florida Statutes. Many leases, especially for homes for sale, specify rights and responsibilities as it pertains to the sale and disposition of the property while being rented. Normally it requires 30 - 60 days notice to the tenant which allows them to line up other housing.

Many tenants living in a home that's also for sale, when given sufficient notice of such sale, are very cooperative. Don't forget that after the initial showing, a home that's under contract will need to have additional inspections, appraisals, and possible followup showings in accordance with the sales contract. That will require an understanding tenant and the best way to achieve that is for a Landlord to be understanding and protective of the tenant's privacy.

But what happens if there is no lease in place (a month to month for example) when a home goes under contract? Well, the law references the previous lease with respect to cancellation of an unwritten lease:

83.57 Termination of tenancy without specific term.--A tenancy without a specific duration, as defined in s. 83.46(2) or (3), may be terminated by either party giving written notice in the manner provided in s. 83.56(4), as follows:

(1) When the tenancy is from year to year, by giving not less than 60 days' notice prior to the end of any annual period;

(2) When the tenancy is from quarter to quarter, by giving not less than 30 days' notice prior to the end of any quarterly period;

(3) When the tenancy is from month to month, by giving not less than 15 days' notice prior to the end of any monthly period; and

(4) When the tenancy is from week to week, by giving not less than 7 days' notice prior to the end of any weekly period.

Basically Florida law only requires a MINIMUM of 15 days notice for a tenant on a month to month unwritten lease. That's really not much time, so I would recommend a minimum of 30 days.

Florida law also gives the landlord (or their agent) the ability to access the property to further the sale of that property. All access is conditioned upon "Reasonable Notice" to the tenant.

83.53 Landlord's access to dwelling unit.--

(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

(2) The landlord may enter the dwelling unit at any time for the protection or preservation of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

(a) With the consent of the tenant;
(b) In case of emergency;
(c) When the tenant unreasonably withholds consent; or
(d) If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.
(3) The landlord shall not abuse the right of access nor use it to harass the tenant.

Selling a property with a tenant can be an involved, sensitive situation that requires the utmost in care and compassion. When in doubt, one almost always gets more "flies" with honey rather than vinegar!

Recently, I have had 2 mind-numbing experiences with permits. Yep, the bane of a homeowner's existence. Permits issued by a municipality are actually a good thing as they provide:

1. Uniformity of building codes
2. conformity to building codes
3. an acceptable level of safety in construction
4. a way to track improvements to a property

I have come to learn that in Florida, title searches conducted by title companies do not examine public records for any open permits that have not received final inspections. Basically, they are not a lien and property can be transferred with open permits. That moves the onus to both Buyers and Sellers to ensure their property has no open permits.

So how do you find any open permits? The easiest Sway is to contact the city or county building department and asked for a property card printout. It should show any additions or improvements that have had a permit pulled. It will NOT show any record of unpermitted additions or improvements.

Let's say there is an open permit, for example, on a window replacement. What should a buyer do? First, determine with the municipality if the permit is in fact still open, i.e. no final inspection. The easiest method to resolve that is to contact the contractor who installed it and have them call for the final inspection. If the homeowner did it, then the homeowner calls in the final inspection. That should do it.

If the contractor is out of business, then the homeowner MUST close the permit by requesting the final inspection on the contractor's behalf.

Addition permits can be trickier to finalize but they can be done. If a permit was never pulled on an addition, that may be quite costly and intensive for the seller. If the buyer goes through with the purchase and assumes responsibility for the home, the municipality may REQUIRE the new owner to rectify the permit issue, which may include larger fees, penalties, and invasive inspections.

So do yourself a favor and check for permits!